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February 29, 1972

George F. KUGLER, Jr., Attorney General of the State of New Jersey, Defendant. Joanne ABRAMOWITZ, et al., Plaintiffs, v. George F. KUGLER, Jr., Attorney General of the State of New Jersey, et al., Defendants

The opinion of the court was delivered by: FORMAN

Two cases raising numerous constitutional challenges to the New Jersey abortion and related statutes are presented for disposition here. Plaintiffs in the first suit, Y.W.C.A. v. Kugler, No. 264-70 (Y.W.C.A.), are nine physicians, two of whose licenses have been revoked following prosecution under the challenged statutes; three women appearing for themselves and on behalf of the membership of the New Jersey Branch of the Women's International League for Peace and Freedom; and one woman appearing for herself and on behalf of the Young Women's Christian Association of Princeton, New Jersey. George F. Kugler, Jr., the Attorney General of the State of New Jersey, is named as defendant. Plaintiffs contend that N.J.S.A. 2A:87-1 *fn1" and 45:9-16 *fn2" deprive physicians and women of constitutional rights guaranteed by the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments. Jurisdiction is invoked under 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281, 2284 and 42 U.S.C. § 1983.

Plaintiffs in the second suit, Abramowitz v. Kugler, No. 431-70 (Abramowitz), are approximately 1200 women, appearing for themselves and on behalf of all other New Jersey women similarly situated and allegedly suffering violations of their constitutional rights. In addition to the Attorney General of the State of New Jersey, plaintiffs name as defendants Lloyd W. McCorkle, Commissioner of Institutions and Agencies of the State of New Jersey, and Newark Beth Israel Medical Center. *fn3" Plaintiffs claim that N.J.S.A. 2A:87-1, *fn4" 2A:87-2, *fn5" 2A:170-76 *fn6" and 45:9-16 *fn7" violate the rights of women under the First, Fourth, Fifth, Ninth, Fourteenth and Nineteenth Amendments to the Constitution. Jurisdiction is invoked under the foregoing Amendments and under 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281, 2284, 42 U.S.C. § 291 et seq. (the Hill-Burton Act), 42 U.S.C. § 1396 et seq. (Medicaid), and 42 U.S.C. § 1983.

 A three-judge court was convened pursuant to 28 U.S.C. § 2284, in both cases, which were consolidated for purposes of a hearing and all further proceedings. Briefs were filed and oral arguments were presented. Plaintiffs seek summary judgment on requests for a declaratory judgment that the statutes respectively challenged are unconstitutional, and seek injunctions against their operation and enforcement. In addition, two of the plaintiff-physicians in Y.W.C.A. seek expungement of criminal records resulting from their convictions under the statute, and the return of their medical licenses, by order of this court.

 Permission to appear as amici curiae was granted to the Planned Parenthood Federation of America, the New Jersey Right to Life Committee, the Christian Action Foundation and the New Jersey Catholic Conference, on all of whose behalf briefs were submitted.

 Defendants first contend that plaintiffs lack standing because they have not shown the existence of a case or controversy sufficient to invoke the jurisdiction of the court, and the issues raised are of a political and social, rather than a legal, nature and should properly be left to the state legislature for resolution.

 Article III, sec. 2 of the Constitution, which limits judicially cognizable issues to those involving an actual "case" or "controversy," is the source of the standing requirement and, although outwardly simple, reflects principles fundamental to the operation of our judicial system:

"In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine." *fn8"

 In addition, the standing requirement reflects a judicial rule of self-restraint, designed to avoid passing upon prematurely raised or ill-defined controversies involving constitutional questions. *fn9"

 Since the passage of the Declaratory Judgments Act in 1934, *fn10" it has been said that the Act "intended to liberalize conceptions of justiciability". *fn11" It was not, however, intended to enlarge the jurisdiction of the courts, *fn12" and has in no way diminished the necessity of a party seeking a declaratory judgment to establish a case or controversy and thus, the standing requisite to the maintenance of a suit. This is manifest from the language of the statute itself *fn13" and from the Supreme Court's exposition of the prerequisites to a declaratory judgment:

"Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." *fn14"

 Expressing these principles in another way, the Court has stated that:

"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court

 so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204 [82 S. Ct. 691, 703, 7 L. Ed. 2d 663] (1962)." *fn15"

 These principles have been reaffirmed in Golden v. Zwickler: *fn16"

"No federal court, whether this Court or a district court, has 'jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.' Liverpool, N.Y. & P.S.S. Co. v. Commissioners [of Immigration], 113 U.S. 33, 39 [5 S. Ct. 352, 355, 28 L. Ed. 899] (1885)." (Emphasis supplied).

 Examining the allegations of plaintiff-physicians in Y.W.C.A. in light of these principles it is clear that they have fulfilled both constitutional and judicially formulated standing requirements. They allege that the abortion statute is vague on its face and as applied in violation of the specificity requirement of the Fourteenth Amendment; that it deprives physicians of the right to practice medicine according to the highest standard of medical practice, and that it violates the rights of physicians and their women patients to privacy in their physician-patient relationships, as guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.

 As a result of prosecutions under the statute, two of the plaintiff-physicians have lost their licenses to practice medicine and one was incarcerated at the time this action was commenced. In addition, all allege that they have been forced to turn away patients seeking advice and information about the possibility of obtaining abortions.

 In light of these circumstances, Tileston v. Ullman, *fn17" emphasized by defendants to oppose standing, is clearly distinguishable. In Tileston, a physician challenged Connecticut's contraceptive statutes as violative of his patients' constitutional rights, but failed to allege any violation of his own personal or property rights. On the basis of these allegations it was held that no case or controversy existed as to him. In the present case, on the contrary, physicians have fully alleged past, present and continuing violations of their own liberties. Nor is this court persuaded by the reasoning applied in Doe v. Randall, *fn18" where the court held that no case or controversy had been presented by a physician who had performed an abortion, but against whom no indictment had been returned. The fact of prior prosecutions under the abortion statute, and the allegations of violations of plaintiff-physicians' own constitutional rights are sufficient to establish a prima facie case or controversy. Thus, the physicians clearly have standing.

 Moreover, the violations of their constitutional rights alleged by plaintiff-physicians are closely interwoven with and inseparable from the allegations they make on behalf of their women patients for violations of their constitutional rights. The contention that the alleged rights to freely practice medicine according to the highest standard of medical practice, and to privacy in physician-patient relationships entitle physicians to advise and direct women patients concerning abortion, and to perform abortions, is inextricably linked with and dependent upon adjudication of the alleged right to privacy of their patients in securing abortions. Thus, it is appropriate here to grant plaintiff-physicians standing to litigate the alleged deprivations of the constitutional rights of their women patients. *fn19"

  Plaintiffs numbering approximately 1200 in Abramowitz claim standing on the basis that they belong to, and appear on behalf of, the class of New Jersey women "who as women . . . suffer under the New Jersey abortion laws." In their complaint, as amended, brief and oral argument they assert that New Jersey women constitute the class most directly affected by the abortion statute, and that there is "no person with a greater personal stake in the question of the constitutionality of the New Jersey abortion statute than any fertile woman of child-bearing age." Plaintiffs argue that such a woman may at any time experience an unwanted or accidental pregnancy, in which case she will be forced either to bear an unwanted child or to risk the hazards of an illegal "back-street" abortion. Plaintiffs contend further that these consequences are forced upon women by operation of the statute, in violation of their constitutional rights to life and liberty and equal protection of the laws under the Fourteenth Amendment, and their right to privacy under the Ninth Amendment. They argue additionally that the effect of the statute in compelling them to bear unwanted children is to perpetuate an inferior status which the Nineteenth Amendment was intended to eradicate, and that the statute violates the proscription against an establishment of religion and the free exercise thereof under the First Amendment. Plaintiffs claim finally that the period of time available during pregnancy is insufficient for full litigation, and that, practically, they will be unable to redress deprivations of their constitutional rights without a grant of standing here.

 It is apparent that the alleged deprivations of constitutional rights depend upon the contingency of pregnancy. It is only then that women must choose between bearing an unwanted child and an abortion, and that the alleged constitutional deprivations take on immediacy and reality. However, aside from an allegation that women are compelled, under the present law, to subject their bodies to the possible dangers of oral and other contraceptives prior to pregnancy, plaintiffs have not shown a specific invasion of individual rights or threat of harm which arises prior to the occurrence of pregnancy. Nor do they allege that any of them is pregnant with an unwanted child or is seeking an abortion. Plaintiffs do allege that some of them have already been forced to choose between these two alternatives. But no plaintiff has shown that she is presently confronted with this problem.

 While there may be a class of New Jersey women presently threatened as described by plaintiff-women, their contention that they are members thereof is unsupported by their complaint, as amended, their brief, or oral argument. We must conclude that the constitutional infirmities and deprivations alleged to flow from the statute are of a hypothetical and abstract nature as to these plaintiffs.

 This conclusion is amply supported by prior adjudications involving the question of standing. In Flast v. Cohen, *fn20" upon which plaintiffs rely, the Court held that federal taxpayers possessed standing to litigate the constitutionality of allocations of federal funds to finance instruction in sectarian schools. The Court held that the plaintiff-taxpayers had shown an important personal stake in the outcome of the litigation, in the form of an immediate threat to their constitutional rights. It observed that the utilization of federal tax monies for such a purpose might well violate plaintiff-taxpayers' and all citizens' constitutional rights to be free of governmental establishment of religion. Thus a logical nexus existed between the violations alleged and the harm threatened to the plaintiffs in their status as federal taxpayers. In the present case we cannot find such a link between the alleged violations and the harm threatened to plaintiffs as women.

 In Barrows v. Jackson, *fn21" money damages were sought against petitioner, a Caucasian, for breach of a racially restrictive covenant. Her claim of standing to litigate alleged violations of the constitutional rights of black citizens by state judicial enforcement of the covenant was upheld by the Court. It found, in addition to the threat of a substantial pecuniary loss, which was sufficient to confer standing, that "it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court". *fn22" In the present case, as discussed above, plaintiff-physicians in Y.W.C.A. have standing to assert deprivations of the constitutional rights of their women patients. In fact, the complaint in Y.W.C.A. alleges most of the deprivations of the constitutional rights of women asserted by plaintiffs in Abramowitz. Hence, we are not faced with a factual situation in which it would be difficult, if not impossible, for the constitutional violations alleged to be adjudicated without a grant of standing to plaintiff-women. This is not one of the "unique situations" in which considerations of "broad constitutional policy" indicate a relaxation of the standing requirement. *fn23"

 The circumstances of the present Abramowitz case, on the contrary, are more closely analogous to the facts involved in Zwickler v. Koota *fn24" and successive litigation in Golden v. Zwickler. *fn25" In the first case, the petitioner had been convicted of distributing anonymous political handbills inveighing against a congressman in violation of a New York State law, and sought a declaratory judgment that the statute was unconstitutional, stating his intention to distribute more handbills opposing him in the next election. A three-judge court abstained from determining whether the petitioner was entitled to a declaratory judgment. The Supreme Court reversed and remanded. Zwickler v. Koota, supra. Meanwhile, the congressman against whom petitioner's handbills were to be directed had left the Congress for a place on the Supreme Court of New York, which carried a term of fourteen years. The District Court held on remand that the lack of immediate threat to the petitioner of enforcement of the statute would not prevent it from issuing a declaratory judgment, and held the statute unconstitutional. On an appeal from this decision, the Court, in Golden v. Zwickler, supra, again reversed, holding that petitioner had not presented his constitutional question "in the context of a specific live grievance" *fn26" and that a hypothetical threat to his rights was insufficient to support a declaratory judgment. *fn27"

 This reasoning is equally applicable to the situation of plaintiffs in Abramowitz. They do not possess standing to assert the claims of the class they purport to represent since no immediate threat exists which would indicate the presence of a case or controversy as to them before this court. Moreover, this reasoning is likewise applicable to women plaintiffs in Y.W.C.A. The contentions of plaintiffs in Abramowitz and of those in Y.W.C.A., as individual women and on behalf of the organizations they claim to represent amount to no more than allegations that they "feel inhibited" *fn28" by the operation of the abortion statute. Finding no distinction between them and absent a showing of a live controversy or immediate threat of injury, so much of the complaint as pertains to the allegations of the women-plaintiffs in Y.W.C.A., individually, and allegedly on behalf of the Young Women's Christian Association of Princeton, New Jersey, and the New Jersey Branch of the Women's International League for Peace and Freedom *fn29" will be dismissed for lack of standing. On the same ground the complaint in Abramowitz must fall. *fn29"

 There remain the issues raised in the Y.W.C.A. complaint against the defendant Attorney General by the physician-plaintiffs for themselves, and on behalf of their women patients, to which the following discussion is addressed.


 The Attorney General next urges that this court should abstain from entertaining plaintiffs' requests for declaratory and injunctive relief. In Zwickler v. Koota, *fn30" the Supreme Court expressed the broad general principle that Congress:

"imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '. . . to guard, enforce, and protect every right granted or secured by the Constitution . . . '"

 Under the rule of Zwickler it has been held that a federal court may avoid its duty to accept federal constitutional claims only in "narrowly limited 'special circumstances.'" *fn31" One of these special circumstances is:

"when a decision concerning a question of state law is necessary to a disposition of the case, and the answer to the state question involves unclear state law or a matter of paramount interest to the state." *fn32"

 Foremost, however, is "the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question." *fn33" The Attorney General contends that the present case falls within this exception and relies on Reetz v. Bozanich, *fn34" and Rogers v. Danforth. *fn35" They are, however, clearly distinguishable from the present case. In Reetz, the Supreme Court held that a federal district court had erred in refusing to abstain from issuing a declaratory judgment where Alaska statutes regulating salmon licensing and attacked by plaintiffs had not yet been the subject of any adjudication in the state's courts. In Rogers, a federal district court abstained from hearing a challenge to Missouri's abortion statute on the grounds that the state court had not yet authoritatively construed the statute. In both cases, it was felt that state court adjudications might have avoided or resolved the issues raised in the federal district court. In the present case, on the contrary, the statute in question has been the subject of state judicial scrutiny, and the constitutional issues raised here have not been avoided or resolved by adjudication in the state courts. The Supreme Court of New Jersey has held the abortion statute susceptible of constitutional construction, *fn36" and it is in light of the New Jersey state adjudications that constitutional infirmities are alleged still to exist. The entertainment of this case, therefore, would not precipitate a premature federal disposition of constitutional questions which might be avoided or resolved in a state adjudication if this court abstained. Nor do the constitutional issues raised here involve any questions of unclear state law or an issue of paramount interest to the state, which should be resolved first in a state court. Thus, the "special circumstances" which demand abstention are lacking in the present case. *fn36"

 Although this conclusion would normally terminate our inquiry, the abstention question must be further examined in light of the issues raised by the Supreme Court in a group of six related cases, decided after the hearing in this case, which restricted the situations in which declaratory and injunctive relief against pending proceedings under a state criminal statute may be granted by a federal district court. *fn37" Younger v. Harris *fn38" was an appeal from the decision of a three-judge court of the Central District of California enjoining a prosecution pending under a state criminal statute, and, as "other and further relief," declaring the statute unconstitutional. This decision was reversed by the Supreme Court, which limited the grounds justifying federal injunctive relief to the "special circumstances" where a threat of great and immediate irreparable injury is shown.

 More important to the prayer for declaratory relief in the present case, however, was the Court's overturning of the declaratory judgment in Younger on the basis of its holding in Samuels v. Mackell: *fn39"

"in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and . . . where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well."

 It is clear that Younger and Samuels indicate a modification of the rule governing declaratory judgments stated in Zwickler v. Koota, supra, in cases where a prosecution under a state criminal statute is pending, and now restrict the criteria for federal declaratory relief to those justifying federal injunctive relief -- that is, a threat of great and immediate irreparable damage. *fn40" The question left open by the Court is whether these principles should be applied to a case like the present, where no state criminal proceeding was pending when the declaratory judgment and the injunction against enforcement of the statute were sought. *fn41"

 Examining the rationale underlying these decisions, it appears that the Court was strongly influenced by the disruptive effects of federal interference with pending state prosecutions. Federal intervention in such cases, which for all practical purposes results in parallel litigation of the same case in the two court systems, may seriously interrupt the smooth and efficient operation of both judicial systems. It will almost always interfere at least with state court proceedings since a federal district court can effectuate its declaratory judgments by enjoining the state proceedings. The effect of a declaratory judgment in these circumstances becomes virtually the same as that of an injunction, for either type of relief ultimately compels a halt in a state prosecution. Such a consequence in itself constitutes a severe blow to the delicate balance between the federal and state judicial systems and the principles of comity which enforce and protect it. Moreover, federal judicial interference in on-going state prosecutions may involve violations of the Federal Anti-Injunction statute, *fn42" in which the prohibition against federal judicial intervention in pending state proceedings has always been held to embody a basic principle in the separation of the state and federal judicial systems.

 Upon a consideration of Younger and its related cases, however, we are not persuaded that the reasoning and fundamental policies voiced therein are applicable to the petition for declaratory judgment in the instant case, where no state prosecution was pending against the plaintiffs at the time federal relief was sought. Here, the consideration of a request for declaratory judgment does not constitute an adjudication of the plaintiffs' claims simultaneously in two judicial forums, and therefore does not involve the certain disruption of an ongoing state proceeding with which the Supreme Court was concerned in Younger and the related cases. Thus, the entertainment of a petition for declaratory judgment in the circumstances of the present case is not analogous to injunctive relief and we are not persuaded that it must be governed by the limited "special circumstances" which justify the issuance of an injunction. Hence, we conclude that it is appropriate here to consider the plaintiffs' petition for declaratory relief. *fn43"


 Plaintiffs' request for injunctive relief, however, raises an abstention question of a different dimension. A line of decisions, of which Younger is but a recent example, reflect the established judicial principle that injunctions issued against pending or threatened prosecution under state criminal statutes severely threaten the integrity of orderly state judicial process, and the balance of the federal and state judicial systems. Hence, injunctive relief has long been an extraordinary judicial measure appropriate only in "special circumstances." *fn44" In order to obtain injunctive relief a petitioner must show more than the threat of injury which is "incidental to every criminal proceeding brought lawfully and in good faith . . . " *fn45" Rather, he must show a threat of great and immediate irreparable injury. *fn46"

 In Dombrowski v. Pfister, *fn47" irreparable injury to the petitioners was established where state officials had utilized a statute in bad faith and for the purpose of harassment. The court found full support for the allegations that:

"the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana." *fn48"

 Finding that these threatened actions exerted a severe "chilling effect" upon the petitioners in the exercise of their First Amendment freedoms, and that "defense of the State's criminal prosecution [would] not assure adequate vindication of [petitioners'] constitutional rights," *fn49" the Court granted an injunction.

 Subsequently, in Cameron v. Johnson, *fn50" the Court affirmed the refusal of a federal district court to issue an injunction against enforcement of a state statute regulating picketing on the grounds that the statute was not vague and overbroad, and was not being utilized by the state in bad faith to discourage civil rights activities. It also stated that any chilling effect on picketing as a form of freedom of expression that might result from a good-faith enforcement of the statute was insufficient to justify injunctive relief. This reasoning was affirmed in Younger, in which the Court rejected the notion that "the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a state statute is found 'on its face' to be vague or overly broad in violation of the First Amendment." *fn51"

 Other courts facing challenges to state abortion laws have adjudicated requests for injunctions in accordance with these principles. In Babbitz v. McCann, *fn52" a federal district court held that Wisconsin's abortion statute violated the plaintiff's Ninth Amendment rights, but refused to issue an injunction against the stricken statute, stating that there was no showing of exceptional circumstances sufficient to warrant an injunction, and no reason to doubt that the state would fail to vindicate plaintiff's constitutional rights. Only when it became apparent that the state had refused to cease prosecutions under the statute did the district court issue an injunction against its exercise. *fn53" In Roe v. Wade, *fn54" a federal district court held that an abortion statute of Texas violated the plaintiffs' Ninth Amendment rights, but refused to issue an injunction because it could not find that the statute was enforced in order to discourage protected activities, or to abridge freedom of expression.

 Applying these principles to the present case, it is clear that plaintiffs have neither alleged nor shown utilization of the New Jersey abortion statute by state prosecutors for any reason other than in good faith and for the purpose of securing valid convictions thereunder. They have made no allegation that the abortion statute has been used against them in bad faith as an instrument of intimidation or harassment in the exercise of their protected constitutional rights. The allegation that they are chilled in the exercise of First Amendment freedoms is insufficient in itself to support injunctive relief. Moreover, no reasons have been advanced to indicate that state prosecutors will fail to enforce or protect plaintiffs' constitutional rights as found by this ...

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